Hillside Securities Co. v. Minter

Decision Date14 August 1923
Docket NumberNo. 24158.,24158.
Citation300 Mo. 380,254 S.W. 188
PartiesHILLSIDE SECURITIES CO. v. MINTER et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.

Suit by the Hillside Securities Company against Jacob B. Minter and others. Judgment for plaintiff, and defendants appeal. Affirmed.

D. R. Hite, of Topeka, Kan., and Theodore Emerson, Claude Coppinger, James S. Simrall and Claude Hardwicke, all of Liberty, for appellants.

Lathrop, Morrow, Fox & Moore, of Kansas City, and Martin E. Lawson and Lawson & Hale, all of Liberty, for respondent.

DAVID E. BLAIR, J.

From a judgment of the Clay county circuit court, granting plaintiff (respondent) a permanent injunction against defendants (appellants), an appeal was granted to this court. The amount involved is sufficient to fix our jurisdiction.

Plaintiff is a corporation, and instituted this action as a taxpayer of Clay county to enjoin defendants, who are the county judges of such county, from issuing certain county warrants in payment for bridges built by the defendant Topeka Bridge & Construction Company, to enjoin said bridge company from collecting such warrants, to enjoin defendant Earl Denny, county surveyor of said county, and ex officio county highway engineer, from certifying estimates of progress in the work of constructing said bridges to the county court for payment, and to enjoin defendant Laura Chapman, as treasurer of said county, from paying out any money of the county upon any warrants issued in payment for said bridges.

The suit was filed January 3, 1922. All of the appellants here, except the bridge company, were made defendants, and thereafter the evidence was heard at the March term, 1922, of said court. The bridge company was thereafter brought in as a defendant, and at the following term the cause proceeded against all the defendants, and the trial court entered judgment against all the defendants in accordance with the prayer of the petition.

The facts are not complicated, and are practically undisputed. The county court ordered defendant Denny, as highway engineer, to prepare plans, specifications and estimates of cost for a number of bridges and culverts in Clay county, and thereafter ordered him to advertise for bids for the construction thereof in accordance with such Plans and specifications. The contract for the construction of six of the bridges, known as Wilkerson Creek, Irminger, Raymond, King, Morrow, and Lightburn bridges, was awarded to the Topeka Bridge & Construction Company in a lump sum 5 per cent. Less than the aggregate of its bids for constructing the six bridges separately. Such bridge company submitted no bid based upon the plans prepared by the highway engineer, but such bid was made upon the specifications prepared by him and upon "alternate" plans Prepared by such bridge company. No other person or company bid, or was given an opportunity to bid, upon the alternate plans which the bridge company prepared and submitted. The bridge company was awarded the contract on such plans on September 5, 1921. It is the contention of plaintiff that the contract made under the bid upon such alternate plans was illegal and void, because the contract was not let in pursuance of advertisement and bids on the original Plans, as required by section 10734, R. S. 1919.

Defendants offered evidence, which was uncontradicted, that the plans offered by the bridge company were in all respects as good as, if not better than, the plans prepared by the highway engineer; that the bridge company complied fully with the specifications and profiles prepared by the highway engineer; that the cost of the bridges under such alternate plans did not exceed the cost of the bridges under the plans prepared by the highway engineer; that such bridges were reasonably worth all the county agreed to pay for them.

There was some talk of an injunction suit about the 1st of December, 1921. However, the bridge company went ahead with the work. It appears that the vice president of that company, C. B. Knowles, had heard of the threatened injunction suit, and knew all about the filing of such suit. At the time the suit was filed against appellants, who are county officials, three of the bridges, to wit, Wilkerson Creek, Morrow, and Lightburn bridges, had been fully completed, accepted by the county court, and warrants issued in payment therefor. At that time work had been started on the Irminger bridge, and material had been placed on the ground and orders given for other material for all three of the bridges not then completed. No temporary injunction was issued. At the time the bridge company was brought in as a defendant, all the bridges had been completed, accepted by the county court, and warrants issued to the bridge company to the full amount of the contract and for extras conditionally provided for in such contract. The unpaid warrants amount to $9,786.45.

The sole assignment of error made here is the action of the trial court in granting the injunction and in failing to dismiss plaintiff's bill. It is conceded that the bridge company did not submit its bid upon plans approved by the county court before the letting, and that the county court accepted the bid of the bridge company upon alternate plans submitted by the bridge company upon which no other contractor was given an opportunity to bid. It appears that the bids of the bridge company were within the estimate of cost made by the highway engineer, and that such bridges were built upon such alternate plans, but otherwise in compliance with the specifications and profiles previously prepared by the highway engineer.

Section 10734 provides an exclusive method of letting contracts for the construction of bridges by the county court. It requires that all work let by contract, of the estimated cost of over $500, shall be let, after due advertisement, upon bids made upon maps, plans, specifications, and profiles, previously prepared by the highway engineer. That the statute does not contemplate the letting of contracts upon plans other than those submitted by the highway engineer and approved in advance of advertising and acceptance of bids of contractors bidding upon such plans is clear. There accordingly can be no question that the acceptance of the bids made by the bridge company upon plans other than those prepared by the highway engineer was a failure to comply with the statute. Appellants do not dispute this.

Appellants have cited us to no statute authorizing the county court to pay for work of this character done under contract not awarded in compliance with statutory requirements. Article 4, § 48, of our Constitution, provides:

"The General Assembly shall have no power to grant, or to authorize any county or municipal authority to grant * * * nor pay nor authorize the payment of any claim hereafter created against the state, or any county or municipality of the state, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void."

Section 2164, R. S. 1919, is as follows:

"No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing."

In an early case (Wolcott Lawrence County, 26 Mo. 272) this court laid down the general rule which is applicable here:

"The county court is only the agent of the county, and, like any other agent, must pursue its authority and act within the scope of its power. In respect to many things that concern the county, it has a large discretion; but in reference to the erection of county buildings its authority is defined by a public law, and is special and limited. It cannot act like general agents, whose acts may bind their principals if performed within the general scope of their agency, though in violation of private instructions unknown to those who deal with them; for it has no power over the subject except such as is given by law; and every person who deals with the county court, acting in behalf of the county, is bound to know the law that confers the authority. There is no difference in this respect between public and private agents; and if the county court exceeds its special and limited authority, conferred by the statute, in a material matter, the county will not be bound."

A large number of cases in this and other states are cited by respondent to support the general proposition that, in letting contracts for the construction of bridges, nubile buildings, etc., the county court or other public authorities must follow the express provisions of the statute, or such contracts will be void, and the county, city, or school district, as the case may be, will not be bound to pay for the work done under cinch contracts. It is only necessary to cite a few of the cases. Anderson v. Ripley County, 181 Mo. 43, 80 S. W. 266; Heidelberg v. St. Francois County, 100 Mo. 63, 12 S. W. 914; Sparks v. Jasper County, 213 Mo. 218, 112 S. W. 265; Hannan v. Board of Education, 25 Okl. 372, 107 Pac. 646, 30 L. R. A. (N. S.) 214; Dolezal v. Bostick, 41 Okl. 743, 139 Pac. 964; Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, 114 Pac. 457. Such is the general rule. 9 Corpus Juris, 439; 15 Corpus Juris, 549.

Appellants contend that neither the contract involved nor the performance thereof was malum prohibitum; that, if the contract had been entered into in conformity with the statutes, it would have been valid and binding on both parties; that, as the bridges...

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